Boozer v. Teague

3 S.E. 551, 27 S.C. 348, 1887 S.C. LEXIS 142

• Court: Supreme Court of South Carolina
• Decided: October 10, 1887
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Justice McIver.

This was an action brought by the plaintiff to recover a certain tract of land,- known as the Whitman place, for the benefit of herself and her infant son, John D.Boozer, jr., who, because of his minority, has been made a defendant. Her claim is based upon the allegation that her deceased husband, John D. Boozer, sr., died seized and possessed of the land, and she, as his widow, and their infant son, John D., being his only heirs at law are entitled to recover possession of the said land from the other defendants, who, it is alleged, wrongfully withold the possession from them. The claim of the defendants (except John D. Boozer, jr., who, though nominally a defendant, is practically one of the plaintiffs, and will be so treated throughout this discussion), on the other hand, is that the land in controversy really belonged, equitably, if not legally, to Elizabeth C. Teague, and that they, as her devisees, are entitled to retain possession thereof. The case was by consent heard by Judge Kershaw without a jury, who rendered judgment in favor of the plaintiff, refusing a motion for a new trial submitted by the defendants, and from such judgment, as well as the order refusing the motion for a new trial, all of the defendants except Mrs. Frances E. Mills and John D. Boozer, jr., appeal, upon numerous grounds set out in the record.

The decree of the Circuit Judge states so fully and clearly the facts of the case, and so satisfactorily vindicates the correctness of his conclusions, that but for the earnestness with which this appeal has been urged, it would scarcely be necessary to add anything to what he has so well said.

There cannot be a doubt, after reading the voluminous testimony set out in the “Case” (though even this is denied in the answers of the defendants), that on November 9, 1871, Mrs. Elizabeth C. Teague made an absolute deed to her son by a former marriage, John D. Boozer, sr., for the tract of land in controversy, which had been conveyed to her by one Whitman on the same day. So far as we can learn, the deed was in the usual form, with a general warranty, qualified by these words : “except as regards to the two notes given for the purchase money.” The title 'having thus been vested in John D. Boozer, sr., must necessarily now be in his heirs at law, unless it has passed out of him in some way. The fundamental inquiry, therefore, in the case is, did this title ever pass out of John 1). Boozer, sr., in his lifetime ? for there is no pretence that his heirs at law have, since his death, been divested of the title, except, perhaps, by the statute of limitations, of which we will speak hereafter.

To maintain the defence set up the burden is upon the defendants to show that the title did, during the life-time of John D. Boozer, sr., pass back to his mother, Mrs. Elizabeth C. Teague, under whom defendants claim. This they claim has been done in several ways. First, they contend that the deed from Mrs. Teague to her son Boozer was made upon condition that he was to pay the two notes given by Mrs. Teague to Whitman for the credit portion of the purchase money, and that by reason of the breach of such condition and the re-entry by Mrs. Teague the title revested in her. But there is no such condition inserted in the deed, and it is quite certain that parol evidence is wholly insufficient to establish such a condition, for that would be a very material addition to the deed, essentially varying its legal effect. Mowry v. Stogner, 3 S. C., 251; Hammond v. Railroad Company, 15 Id., 10.

It seems to us that the Circuit Judge went as far as he well could have done, in favor of the defendants, perhaps too far, in receiving parol evidence to explain what is termed the ambiguity arising from the words above quoted, which were inserted in the clause of warranty. It does not seem to us that those words raised any ambiguity at all. The evidence clearly shows that Mrs. Teague bought the land from Whitman for her son, paying-the one-third of the purchase money in cash, as a gift to him, and giving her two notes for the credit portion which it was understood were to be paid by her son. Now, inasmuch as she had given a mortgage on the' land to Whitman to secure the payment of these two notes, it was quite natural and proper when she conveyed the land to her son, to insert in the warranty an exception so far as the two notes were concerned, so that if Whitman should find it necessary to foreclose his mortgage and sell the land, the son would have no recourse upon his mother for breach of the warranty in the deed to him, which, without the words inserted, he undoubtedly would have under a general warranty, unqualified by such an exception. It seems to us that the words inserted plainly meant this, and nothing more — that Mrs. Teague warranted the title to her son against all persons except the mortgagee, who might enforce payment of the notes out of the land. Be this as it may, however, it is quite certain that neither the evidence adduced nor any other parol evidence would have been sufficient to incorporate in the deed such a condition as that claimed by defendants.

Again, it is urged that the failure to insert such a condition in the deed was the result of accident or mistake, and that a Court of Equity will grant relief against such an omission by reforming the deed. Without going into the legal aspects of such a contention, it is quite sufficient to say that there is no evidence whatever upon which to raise the question. The testimony of the scrivener, who drew the deed, shows that it was drawn in accordance with the wishes and instructions of the parties, and the very fact that the words above quoted were inserted in the clause of ■warranty is evidence that the matter of making provision for the payment of the notes was not overlooked at the time. Indeed, there is a total lack of any evidence whatever to show that anything was omitted from the deed which the parties intended or desired should be inserted. The most that can be said of it is that the old lady expected her son to pay the two notes, but that she took no steps to bind him legally to do so. All that she did do, and all that the evidence shows she desired to do, was to protect herself against any claim for breach of warranty in case the mortgagee should find it necessary to sell the land, which she conveyed absolutely to her son, under the mortgage which she had given to secure the payment of the credit portion of the purchase money.

Again, it is urged that there was a contract between John D. Boozer, sr., and Mrs. Teague, whereby he agreed to surrender the land to her in consideration of the payment by her of certain money for him, and that by reason of the performance on her part of the terms of such contract, he was bound to perform his part. This claim rests upon the doctrine of specific performance of a contract, and the first difficulty which the defendants have to encounter is that no such claim is set up in their answers. On the contrary, such a claim, resting as it does upon the assumption that the legal title was in John D. Boozer, is wholly inconsistent with the defences there set up. But, waiving this, it seems to us very clear that the defendants have wholly failed to make such a case as would entitle them, or their testatrix, to claim the specific performance of a contract for a reconveyance of the land. It is quite clear that the contract, if there was one, rested altogether in parol, and hence it is incumbent upon' the defendants to show such a part performance as would take the case out of the operation of the statute of frauds.

We agree with the Circuit Judge that the evidence that there was any contract on the part of the said John D. Boozer, sr., to reconvey the land to his mother, if not altogether wanting, is of a very loose and shadowy character. The most that can be said is that Boozer, impressed with a feeling of gratitude for the kindness of his mother, in furnishing the money necessary to relieve him from serious trouble into which he had fallen, expressed a willingness to surrender the land to his mother. But there is a singular absence of any testimony tending to show that either the mother or the son ever supposed or undérstood that the land was to be reconveyed to her in consideration of the money which she had paid out to relieve him from his troubles. The inference to be drawn from the testimony is that the mother paid out this money, under the promptings of maternal feelings, to relieve her son from distress and not with any view or expectation of a contract for the reconveyance of the land, and that the son, upon his return from exile, prompted by a feeling of gratitude, and not as a matter of contract, declared liis willingness to surrender the land to his mother, which he seems to have done. But it nowhere appeal’s that this was a matter of contract, whereby he had bound himself to reconvey the land to his mother; and, accordingly, we find no evidence that any steps were taken, or even any wish expressed, to carry out such supposed contract by a reconveyance of the land.

But, even assuming that there was a verbal contract to reconvey the land, the question still remains whether there was such part performance as would relieve it from the operation of the statute of frauds. The mere payment of the purchase money would not be sufficient, even assuming that it was paid, although the evidence is far from clear as to the amount paid. Nor will the fact that Mrs. Teague was in possession be sufficient, for she did not take possession under and in pursuance of the alleged contract. Poag v. Sandifer, 5 Rich. Eq., 170; Mims v. Chandler, 21 S. C., 480.

It is urged, however, that the letter of John D. Boozer, sr., to Mrs. Frances E. Mills, his sister, the contents of which were testified to by C. C. Teague, was a sufficient compliance with the statute of frauds. The testimony of that witness as to this point was as follows : “ITe said that he was in great trouble and that he had to have assistance from some source or other, and if after speaking to his mother, through Fannie Mills, if she could assist him in any way, he was willing to relinquish all interest in the Whitman place to procure the money that he desired.” Now, it is apparent that, if the letter itself containing this language had been introduced in evidence, instead of the verbal testimony of a witness as to its contents, it would not establish such an agreement as that its specific performance would be enforced by a Court of Equity. The rule being that the writing relied upon must contain all the material terms of the agreement, and that it cannot be supplemented by parol evidence (Hyde v. Cooper, 13 Rich. Eq., 257), this letter would be plainly insufficient. No amount being stated, it would be difficult for a court looking only to that letter to frame a decree for specific performance.

The fact that improvements were made on the Whitman place by Mrs. Teague during her life-time, and continued by defendants since her death, cannot avail anything; for if there was no contract to reconvey, as we have seen, then s.uch improvements were made with full knowledge that the legal title was in Boozer. Indeed, the evidence would seem to show that these improvements were commenced before there was any pretence that there had been any agreement to surrender the land, and consequently could not, with any propriety, be said to have been in pursuance of such alleged agreement.

The fact that Mrs. Teague paid the notes for the purchase money of the land after the conversation between herself and her son when he returned, cannot affect the question, for the witnesses who undertake to prove an agreement for the surrender of the land do not state as the consideration for such agreement the payment of these notes, but, on the contrary, state as such consideration the payment of the money which Mrs. Teague had advanced to relieve her son from the difficulties in which he had become entangled. She was legally liable to Whitman for the payment of these notes in any event, and if she saw fit to pay them and have the mortgage extinguished, instead of taking the proper steps to secure herself, such payment cannot be imported into the previous agreement, if there had been one, as part consideration therefor.

Again it is contended that the question of title as to the infant defendant, John D. Boozer, jr., has been already adjudged against him ; and this being so, the plaintiff having lost the protection which she might otherwise claim under the disability of her infant son, is barred by the statute of limitations from maintaining this action. To sustain this defence of res adjudicata, the record of a proceeding instituted in the Court of Common Pleas by Charles C. Teague, as executor, soon after the death of Mrs. Teague, to which the infant defendant, John D. Boozer, jr., was a party, is relied upon. The object of that proceeding was to obtain an order for the sale of a portion of the real estate of Mrs. Teague in aid of the personalty for the payment of her debts. The complaint exhibited the will of Mrs. Teague whereby she disposed of “all her real estate” without further description or specification. Although it did not appear from the will that Mrs. Teague assumed to be the owner of the land in controversy, and did not undertake to dispose of it by her will specifically, yet it was alleged in the complaint that she died seized and possessed of a tract of land containing 295 acres, “also of an additional tract of 60 acres, known as the Whitman place.” The minor, John D. Boozer, jr., appeared by guardian ad litem and put in a formal answer, submitting his rights to the protection of the court. The case was referred to the master, who, amongst other things, reported “that Elizabeth C. Teague died in the possession of the whole of the 295 acres of land, of which her former husband, John D. Boozer, died seized and possessed, and also 60 acres, more or less, of land, known as the Whitman place.” This report was confirmed, and the court ordered that 100 of the 295 acres be sold to pay the debts and costs of the proceedings. After this no further proceedings were had in the case.

How this can be regarded as an adjudication of the title to the Whitman place, it is very difficult, if not impossible, to conceive. No such issue was necessarily raised, and none such was decided, or necessary to be decided, under the proceedings which were had in the case. True, the executor alleged that Mrs. Teague died seized and possessed of the Whitman place, and in the answer of the infant there is no denial, in terms, of that allegation, nor was there any necessity for such a denial on the part of the infant defendant. His formal answer, committing his rights to the protection of the court, was sufficient to raise any issue necessary for the protection or preservation of his rights; and if it had been deemed necessary to determine the question of title to the Whitman place, as it was not, then the formal answer would have been sufficient to raise that question. It cannot, therefore, with any propriety, be said that the infant defendant, by not denying in terms the allegation in the complaint, that Mrs. Teague died seized and 'possessed of the Whitman place, has thereby admitted such allegation. It will also be observed that the master in his report did not find that Mrs. Teague died seized and possessed of the Whitman place, but only that she died in the possession” of that place. Indeed, the very fact that 100 acres of the 295 acre tract, about which there does not seem ever to have been any dispute, was recommended to be sold, instead of the separate tract of 60 acres, the legal title to which was certainly not in Mrs. Teague, would seem to indicate a purpose not to decide anything in reference to the title to that tract; and this may be the reason why the master, although it was alleged in the complaint that Mrs. Teague died seized and possessed of the Whitman place, simply found that she died “in the possession” of that land, which finding was precisely in accordance with the facts as developed by the testimony in the present controversy. It is quite clear, therefore, that the plea of res adjudieata as to the infant, John D. Boozer, jr., cannot be sustained.

This being so, it is equally clear that the plea of the statute of limitations as to the plaintiff cannot be sustained, as she is protected by the minority of her co-tenant, John D. Boozer, jr. See Hill v. Sanders (4 Rich., 521), where it was held that the rule was well settled in this State, that the minority of one co-tenant will protect the interests of his adult co-tenant from the operation of the statute of limitations ; and that the rule extends to tenants'in common as well as to joint-tenants, and applies whether the infant co-tenant is joined in the action to try the title or not.

Our next general inquiry is, whether the Circuit Judge erred in his rulings as to the admissibility of evidence. It seems to us that the rulings of the Circuit Judge were strictly in accordance with the provisions of the code, and we do not see how this could be made more plain than it is made by the statements of Judge Kershaw' in his decree. It is, however, earnestly contended that there was error in excluding the testimony of Mrs. Mills as to the contents of the letter received by her from John D. Boozer, sr. It will be observed that this witness, though a party to the record and directly interested in the result of the action, notwithstanding the fact that she put in no answer, W'as permitted to testify as to the loss of the letter, but was not ■ permitted to testify as to its contents, for that would, in the face of the code, have been allowing her to testify as to a communication made to her by a party then deceased, under whom the plaintiff claimed as heir at law. This ruling was precisely in accordance with the decision of this court in the case of Standridge v. Powell, 11 S. C., 549.

Again it is urged that the Circuit Judge erred in permitting respondent to prove declarations of John D. Boozer, under whom she claimed, as to his claim to the land after his mother’s death. It will be observed that these declarations were not offered in support of John D. Boozer’s title to the land, but simply to rebut the testimony offered by defendants, that he had never set up any claim to the land after his return from exile, as well as to explain his acts in taking possession of the land; and for these purposes the testimony was competent.

The complaint made by the appellants, that the judge erred in refusing them the privilege of replying to the testimony offered by the plaintiff in' reply, cannot be sustained. In the first place it does not appear from the “Case,” as prepared for argument here, that any objection was made to the plaintiff’s testimony as not being in reply, or that any application was made to the court for the privilege of replying thereto. But as no objection upon this ground has been interposed by respondent's counsel, who, on the contrary, has impliedly, at least, admitted that the proper foundation was laid for this ground, we will assume that the objection was made, and the privilege asked for, at the proper time. Still we think there was no error in the course pursued at the trial. The defendants’ case rested largely upon the alleged fact that John D. Boozer, sr., after his return never set up any claim to the land, and never resumed the possession thereof, and the testimony now in question was manifestly in reply to the evidence adduced by the defendants to sustain that position, and was, therefore, properly received as a reply to the defendants’ evidence. This being so, it is clear that the defendants were not entitled, as matter of right, to the privilege of replying to the reply, though the judge might possibly, as matter of discretion, have allowed them that privilege. But in addition to this, the testimony which defendants claim they were improperly debarred the privilege of introducing, seems to have been presented to the Circuit Judge, in the form of full and voluminous affidavits, upon the motion for a new trial, and it is quite certain that if he had supposed that the exclusion of such testimony worked any wrong to the defendants, he would have granted a new trial. On the contrary, he says, after a careful consideration of the case, “I do not consider tbe additional evidence such as entitles the defendants to a new trial.”

As to those grounds of appeal •which impute error to the Circuit Judge in his findings of fact, it is quite sufficient to say that we see no reason, under the well settled rule of this court, to interfere. The evidence was conflicting as to some of the most material positions, and it is quite clear that there is enough in the testimony to support the conclusions of fact reached by the Circuit Judge.

We have not deemed it necessary to say anything as to the claim that there was a resulting trust in favor of Mrs. Teague, for the reason that under the case of Ex parte Trenholm, (19 S. C., 126), it is too plain for argument that such a claim cannot be sustained.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.